Kavanaugh's dissent is kinda hilarious in this context.
> The original
constitutional principles do not change absent a
constitutional amendment, but the relevant principles—
both the rules and exceptions alike—must be faithfully
applied not only to circumstances as they existed in 1787,
1791, and 1868, for example, but also to modern situations
that were unknown or unanticipated by the Constitution’s
Framers.
I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
There's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists.
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
They are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period. The fact all of that was predictable makes it just so frustrating to see it play out in real time
> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.
Why the scaremongering? What are "they" waiting for?
It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.
What does "subject to the jurisdiction" "obviously" mean, keeping in mind that everyone agrees children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
In general countries have jurisdiction over anyone inside their territory unless there is some exception.
As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.
Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.
Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.
Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.
The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?
> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:
> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.
Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.
Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.
You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.
I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?
I don't think it's obvious. Like why do you think the dissenters are wrong to question what is meant about being "subject to the jurisdiction thereof"? The intention was to prevent former slaves from being deprived of citizenship so what is an argument to say this obviously includes someone who arrives for birth tourism? Why doesn't this include children of diplomats, as one example, if it's such an all encompassing law?
Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.
Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court - and that's the mission of the Supreme Court, to interpret all the various situations for these cases and how they apply constitutionally.
Here is the full text of the relevant section of the 14th:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Please point to the section where it says "this only applies if the parents are citizens".
The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.
That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.
The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.
Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.
It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.
> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court
Every single court on the way to SCOTUS correctly said "the fuck?!"
> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.
It's tricky because dissenting doesn't necessarily mean you'd reach the opposite conclusion in every respect.
In this case, I really doubt even the most conservative justices believe "birthright citizenship means whatever an Executive Order says it does." At a minimum, we know they aren't signing on to the reasoning the 5 in the majority used. And then we can learn whatever they feel like saying in the dissent, but a dissent is just an essay with no force of law.
But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.
Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)
> The Court today takes the extraordinary step of holding
facially unconstitutional the President’s Order excluding
from citizenship the children of foreign temporary visitors
and illegal aliens.
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
Our entire history of a nation is the people fighting against the ruling minority of tyrants. Look at how fast SCOTUS struck down the civil rights act of 1875 (only 8 years).
Look at how quickly slavers used the federal government to uphold slavery, the fugitive slave act was one of the first things Congress signed and took zero time enforcing against the will of the people.
Look at how quickly business leaders fought against Americans trying to better their working conditions.
The US constitution was designed to impede societal progress by stripping power from the people. The "reverance" people have for the "founders" doesn't help either, acting like a document written to embolden slavers as sacrosanct is beyond pathetic.
You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
Imagine being 18 and suddenly discovering you have to prove the citizenship status of a parent you've never met or else you'll be deported to a country you've never been to and who's language you don't speak
Imagine a country extending citizenship to a whole group of people for no reason other than the location of their birth, and then allowing said people to access the benefits of citizenship, including the ability to receive welfare benefits, vote, and run for office.
A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
> Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
No arguments why its better, just stating it as if its fact.
Most countries do not have it because it creates many preverse incentives (such as anchor babies). This especially in countries which are targets of immigration (such as the US).
> Not that long ago, the majority view was that slavery was a great thing
A bit of a tangent, but is that actually the case? The highest estimate I have seen puts slave ownership at 5% of the population while the lowest puts it at 1%.
Obviously just because somebody doesn't own slaves doesn't mean they didn't support the system. There could be economic or legal reasons they couldn't own a slave.
I am just not sure that it was actually a majority view at any point in time in the US.
The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
> Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment).
This is actually just the first step - to propose an amendment.
To ratify it requires 3/4 of the state legislatures (or state “conventions”) to vote in favor.
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
The United States is different from 95% of countries. We're the place you are supposed to flee to when those other countries oppress you. That's just not the history of a place like Italy or Japan.
My great great grandparents left Quebec in search of a place where they could earn enough money to make it. They immigrated to America. They lived in communities of other Quebec emigrants and spoke French their whole lives. They never pursued American citizenship. Without birthright citizenship, would my great grandma have been American? OK then what about my grandpa? What about me? I'm not sure if any of my immigrant ancestors formally pursued American citizenship.
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
Birthright citizenship is one of the best things we have going for us. I see no reason why we should treat people differently depending on whether or not they have an imaginary stamp labeling them as special (IE, as citizens). Birthright citizenship ensures the problem of unequal representation is fixed over time. A self-fixing function, if you will.
I think what you mean to say is that as a result of this ruling the voice of Americans can be diluted over time so that your preferred political outcomes can happen. Not everyone in my country believes that the concept of the nation state is stupid and should be done away with. I understand that there are many who do think this, and I have to live amicably among them, but it doesn't mean that I need to pretend that your ideas are good for me and my kin.
> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
> Also ~95% of countries don't have unconditional birthright citizenship.
Closer to 82% actually, depending on how you count countries. Almost every country in the Western hemisphere has it. https://en.wikipedia.org/wiki/Jus_soli
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
Perhaps advantageous, America has been the product of these incentives and still sits atop the world on most hegemon metrics. It amazes me how many people complain about the post-WW2 world order America built and benefits from more than any other country.
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
This has nothing to do with whether it is a good idea. The question is whether the 14th amendment plainly says that this is the law of the land in the US, which it plainly does.
That three Justices chose to attempt to gaslight us about this is a disgrace. I'll never trust their judgement again.
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
Depending on how you count, something like 96%, 94%, 65% or 87% of mainstream media employees lean left. Of course this matters less and less as customers tune out and their influence wanes.
Yes, educated people tend to lean left, since the right is so anti-intellectual. But virtually all media in this country (both social and legacy) belongs to the far right pedophile oligarchs currently running this country to the ground to fatten their pockets.
This is a cherished American belief, but I don't think it's true after 2016, when NYT gave Trump a significant boost with their coverage of Clinton's emails, and continues to sanewash Trump, after 2024, when billionaires like Soon-Shiong and Bezoa personally directed their paper's editorial stance towards Harris, after Aksel Springer unveils a corporate conservative bias policy.
I think it's blatant now, but evidence suggests that "liberal bias" was never more than a partisan accusation.
35 countries in the world, most in the Americas, confer unconditional birthright citizenship (jus soli), regardless of their parents' nationality or immigration status.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
The U.S. Constitution is very far from being clear. The whole purpose of the Supreme Court is to explain the meaning of what is written in the Constitution; there are 9 justices in the court and they often disagree on that.
Just look at the second amendment:
A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.
The "well regulated militia" phrase caused at least two very different opinions: United States v. Miller [1] in 1939 and District of Columbia v. Heller [2] in 2008, with very different results.
Just as the second amendment has this "militia" phrase that provokes arguments, the fourteenth amendment starts with
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.
and the phrase "and subject to the jurisdiction thereof" is vague enough to trigger discussions about whether it applies to illegal immigrants or not.
No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.
This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.
Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
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>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.
See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.
>This seems entirely subjective.
I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.
I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
This wouldn't really be applying laws retroactively, but deciding what the law has always meant. If the decided meaning is that children of illegal immigrants are not automatically citizens, that means they weren't automatically citizens beforehand. Thus there wouldn't really be anything to revoke, they just never were citizens in the first place.
The executive order that prompted this was only aimed at babies born after it went into effect, but I see no reason it would have to be that way.
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
What is “a matter of time” exactly? I doubt the court wants to revisit this again any time soon. And two of the dissenters are probably the likeliest justices to be replaced next.
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
Another bad decision that won't stand the test of time. The decision says more about the justices themselves than it does the decision. Voting the "right way" gets positive press attention, invites to the DC social circle, etc. Kavanaugh and Barrett are both attention seeking, weak willed individuals that Roberts plays like puppets. Personally, Trump should not have nominated either of them. And W's nomination and selection of Roberts over Scalia was appalling. Neither a textualist or an originalist could have ruled that way. And using the 14th Amendment as justification is historically disingenuous, as Clarence Thomas pointed out. Birth tourism will thrive.
This particular Supreme Court is out of control. The Roberts court will (IMHO) go down in history in the same cateogry as the Taney court that gave us such decisions as Dred Scott. Supreme Court justices have always been political actors, not some high-minded academics that come down from their ivory tower to hand down missives every now and again (as some imagine). But this is a step beyond anything we've seen in a long time. Here are some highlights:
- 4 justices in this decision rejected the plain text reading of the Citizenship clause of the 14th Amendment, which would've overturned over a century of precedent;
- They invented the "Major Questions Doctrine" that basically allows the Supreme Court to overrule the will of the executive and legislative branches if they deem the decision sufficiently weighty. It was invented and used to block significant legislation under the Biden administration;
- They invented the History and Traditions Test under the Biden administration to overturn Roe v. Wade with the Dobbs decision. This was in spite of abortion being not only legal but essentially unregulated at the founding. Famously, Ben Franklin published an at-home recipe for abortion [1];
- They have lied about the facts of cases to push a particular decision. One of the more notable cases was Kennedy v. Bremerton School District that allowed school prayer. The lie? That the coach was "quietly" praying. This was not true and was documented, including photos to the contrary;
- There are now essentially zero limits on campaign spending by anyone after today's decisions on PAC and campaign coordination and of course Citizens United;
- They decided that independent agencies set up by Congress are unconstitutional despite almost a century of precedent because of the separation of powers but this doesn't apply to the Federal Reserve for some reason;
- They overturneed 40 years of precedent of Chevron deference, a case that Gorsuch should've recused himself from since he was essentially avenging his mother's sacking as EPA administrator under Reagan in a case that became Chevron. 40 years of Congress and 7 presidents of both parties have written and signed laws with Chevron deference in mind;
- They invented presidential immunity out of whole cloth in a country that was founded rejecting monarchs who were above the law. All the insider trading and pardon selling of the current administration is a direct and foreseeable result of that decision;
- They decided that Federal regulations could essentially be challenged at any time instead of the previous six-year rule (ie Corner Post). This essentially allows you to challenge a 100 year old rule by setting up a situation where you're "harmed";
- Roberts has almost singlehandedly gutted the Voting Rights Act over several decisions. Previously he got rid of federal preclearance because of a history states had with discrimination and voter suppression. They immediately went back to discrimination and voter suppression. And then this year the court basically allowed racially-discriminated redistricting under the guise that it was "partisan" not "racist" unless you can prove beyond a shadow of a doubt that it's racist;
The inability of this court to see obvious racism harkens back to a famous decision called Cruikshank that decided private individuals couldn't be punished for civil rights violations (notably, hate crimes) in a response to the Colfax massacre. Additionally, Cruikshank stated that the Bill of Rights didn't apply to state governments. This was slowly dismantled by various opinions over the next century.
There were other cases of the Redeemer era (notably Plessy v. Ferguson that legalized segregation) where the court was completely unable to see racism and went out of its way to limit any effort to combat it. We're in one of those eras now (IMHO).
All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
> All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
Actually what today's decision does is uphold Title IX rights for women and girls. Have you considered how this decision benefits female athletes?
Hard to address everything wrong you wrote, but in particular major questions doctrine protects us from presidential overreach. It has been key in stopping some of Trump’s foolish policies like tariffs. So that is hardly something we should be criticizing. Biden’s student loan forgiveness was similarly illegal executive overreach. These sorts of major things should be passed by congress.
Yes and no. The tariffs decision was fractured. There were really two prats. The first was that a statutory interpretation of IEEPA didn't give the President the power to tax. That authority lies with Congress. The MQD, to me at least, felt shoe-horned in tehre, kind of to justify its existence. But a statutory interpretation was sufficient to rebuke the President's authority so why the rest? It feels like the court is saying "see? we use this on Trump too. We're not biased".
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
Maybe so, but it isn't any of the Supreme Court's business. The 14th amendment is very clear. And yep, if you don't like that amendment, you're free to advocate for a new amendment that says something different.
Maybe not that long, but at least as long as 90 years. Thomas cites examples of people being denied citizenship by the executive branch, but in almost all cases they did not sue and just accepted the denial.
It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
Yep. Could not be more disappointed in Gorsuch here. What is the point of writing things down in the Constitution if Justices are just going to vote for their preferred ideology and come up with embarrassingly thin justifications for whatever they think the document should say?
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
How many folks "on the right" would be willing to use similar logic to nullify amendments they tend to like?
E.G.: "US guns are stolen and exported to foreign gangs. Therefore, the text of the 2nd Amendment is entirely null and void and should be 'corrected' by the Supreme Court"
It is not be the job of the Supreme Court to "correct" Constitutional amendments!
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.
Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The dissents are worthless, like most of the opinions from Thomas and the other conservative "justices". None of this wording is tricky unless you are specifically trying to find ways to deny rights to american citizens based on their ethnic origin.
I don't think the language is ambiguous at all, and I consider it shocking and beneath the dignity of the Court that this was not a unanimous decision (and that the case was taken at all).
I agree that it's worth reading the original source and encourage all to do so. My takeaway however was that the majority had a much stronger body of evidence than the dissenters.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
Then you can the work to get Congress to ratify an amendment. Donate, campaign, maybe even run for office yourself! We still do things democratically, not by executive order. Authoritarians will always offer the easy way out.
Both sides of each case should really start doing this after any ruling. As we've seen dozens and dozens of times, there is nothing that says the Supreme Court will have the same interpretation of the same less-than-crystal-clear words 10 years from now. Their decisions in the meantime are also not really democratic yet trend consistently towards their (albeit, very well argued versions of) individual political views instead. It's a problem of the current court as much as it was a problem of the court 20, 40, or 60 years ago.
If you shift from being a living constitutionalist to a strict textualist based on the case in question, then what you really are is a machiavellian.
Kavanaugh's dissent is kinda hilarious in this context.
> The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers.
This, of course, doesn't include machine guns.
I've laughed ever since United States v. Jones (2012), the GPS tracker-stuck-to-vehicle case.
The justices actively debated what the historical equivalent of 24/7 digital tracking would look like in 1791. This prompted the famous hypothetical of an officer secretly squeezing into the trunk of a horse-drawn carriage to track someone's movements over several days.
The issue here is that there's no practical way to ever update the Bill of Rights in the 21st century. Bug or feature?
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Radio, TV, cameras
That said, breech loaders were used by the British during the Revolutionary War (the Ferguson Rifle) and multiple shots from a single barrel using multiple "touch holes" was well known.
And then there's Puckle's gun.
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Fully automatic guns maybe not, but the founding fathers definitely knew about repeating firearms, they had more than a few offers to purchase them, both for military uses and as private citizens. They just denied to because it was expensive to purchase and maintain.
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Humans are rationalizing animals, not rational ones.
Machine guns are illegal in the US. SCOTUS has never ruled there is an individual right to own machine guns.
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How doesn’t include machine guns?
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It's not so clear cut to me (looking from outside).
It makes sense to interpret some cases in historical context and others not, because some cases are not as much affected by the difference in context.
That's not being machiavellian - that's avoiding an one size fits all approach.
This is true, but then one should be able to assume that the justice wouldn't neatly fall along partisan lines whenever they choose to be an originalist or not. When it always toggles on and off ever so conveniently along partisan boundaries, that's when it looks dubious.
There's a difference between textualist and originalist. There isn't a dichotomy between textualist and living-constitutionalist frameworks only but the two former may overlap. Also the same reasoning you are using applies to people who are living-constitutionalists and suddenly become textualists.
https://pacificlegal.org/originalism-vs-textualism-vs-living...
My favorite argument (presented by a constitutional scholar) against originalism is that a constitution interpreted precisely as written by wealthy, landed 18th century white men disenfranchises every person who is not a wealthy, landed 18th century white man, roughly in proportion to how much they share in common with such a person.
Edit: the scholar is Kate Shaw. She presents her arguments a lot more coherently than me, seeing as it’s her life’s work. I advise you read her scholarly work or watch her interviews especially on Originalism rather than try to squeeze an argument out of me.
Following the implications of this argument leads to some pretty hairy places. If a person is incapable of reasoning outside of their class/race/gender/etc position, then how is a fair law even possible? Or perhaps the argument implies that people like that constitutional scholar have reached a state of purely detached enlightenment, and thus are exempt from this logic?
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Yeah... It all falls apart under the bare minimum observation that woman and non-white people were property. And that even white men who did not own land were treated as second-class citizens.
We have no concept of free speech, due process, or individual rights in Asia where I’m from. Where I’m from, if the community doesn’t like you, we can just drive you out of the community. Am I “disenfranchised” by having to live in a liberal democracy created by white men?
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You don't have to be a constitutional scholar to see it's bullshit.
Just the fact that originalism implies an ability to perfectly know what the dead from 1788 meant with each word in every situation. It's a ludicrous proposition.
"absent a constitutional amendment"
Who did that?
"strict textualist" bro the 14th amendment is not vague
The most obvious read of the constitution in the world still being a 6-3 verdict shows the state of the Supreme Court today.
They are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period. The fact all of that was predictable makes it just so frustrating to see it play out in real time
I agree. I wouldn't be the least bit surprised if the US balkanizes. That might not be a bad thing if it can happen peacefully.
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What does this even mean? The decision came out the “right” way today.
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> hey are in the process of building a new country little by little. Eventually they will openly dismiss the US constitution. Things are really, really bad. We are pretty much in US‘s Weimar period.
Why the scaremongering? What are "they" waiting for?
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It's worse than that. It's 5-4 on the read of the constitution since Kavanaugh doesn't think it violates the 14th amendment, just a federal statute.
It's worse than that. The text of the statute is literally the same as the text of the 14th amendment's birthright clause. So he's basically saying the text means one thing when it's a statute, but the exact same words might allow exceptions in the context of the Constitution.
What does "subject to the jurisdiction" "obviously" mean, keeping in mind that everyone agrees children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
In general countries have jurisdiction over anyone inside their territory unless there is some exception.
As far as I know the only exceptions at the time the 14th was drafted and ratified would have been people with diplomatic immunity or similar due to treaties and international agreements.
Immediate families of diplomats living with the diplomat are included in diplomatic immunity, hence their children born here would not become citizens.
Those situations you mention where US court do have jurisdiction over diplomats are: private real estate disputes; wills and inheritance; business activity of diplomats that are running a side business or practicing a profession in the US that is not part of their official duties; lawsuits initiated by the diplomat.
Even if becoming subject to such limited jurisdiction counted as being "subject to the jurisdiction" for purposes of the 14th Amendment it would not matter because newborns are not involved in those things, and so newborn children of diplomats have their full diplomatic immunity.
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The text that SCOTUS put out today discusses this in great detail. You might agree or disagree with their reasoning, but they consider what "obvious" means in light of the text and the writings of the time plus references to old commentary like Blackstones. Maybe better to read that and assume in good faith that this is what the commenter is referring to?
> […] children of diplomats aren't citizens at birth, but U.S. courts have jurisdiction over diplomats for some activities?
AIUI, IANAL, US courts and law do not have jurisdiction over diplomats. When a diplomat the 'hosting' government agrees to immunity, so cannot be prosecuted. E.g.:
> The collision caused diplomatic tension between British and US officials. [Anne] Sacoolas fled Britain soon after the incident, and claimed diplomatic immunity with US support.
* https://en.wikipedia.org/wiki/Death_of_Harry_Dunn
The 'source' country has to agree to remove the diplomatic coverage.
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Well we know “subject to the jurisdiction” is not equivalent to “is a citizen”, otherwise they would’ve used that term instead of being cute with it and leaving excess room for interpretation. If congress wants to define what “subject to jurisdiction” means, then they have every opportunity to.
Have you read the congressional debate around the that amendment to the Amendment? If you have and it's not clear, I'm not sure what else can be said.
Given that the most universally agreed to counter examples are diplomats and invading armies, I'd say a reasonable non-lawyer interpretation is that "subject to the jurisdiction" excludes people who are in some way under the authority or control of a foreign government even while in the US. They may be physically here, but they're presence is on behalf of a foreign government that has jurisdiction over them even while in the US. US law might apply to them in varying ways depending on their status, but there is still a distinction that does not exist for other visitors. Maybe less about the question of whether US law applies at all and more about if US law applies equally beyond the 14th amendment and if any other government can lay claim to authority.
You could potentially apply this to temporary tourists as well, but the linkage between them and the government of the country they are coming from is much weaker since their presence typically doesn't have them acting on behalf of the foreign government or with any special legal distinction.
I'd also pose the same question back to you, what's a reasonable definition of "subject to the jurisdiction" that excludes everyone except US citizens, as many conservatives want, or at least only extends to legal permanent residents?
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That's partial jurisdiction at best.
I guess the obvious answer would be the same as the last decades, while anything else would be called "surprising."
Which is is fine, you can change the constitution, but thats for parliament to do.
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I don't think it's obvious. Like why do you think the dissenters are wrong to question what is meant about being "subject to the jurisdiction thereof"? The intention was to prevent former slaves from being deprived of citizenship so what is an argument to say this obviously includes someone who arrives for birth tourism? Why doesn't this include children of diplomats, as one example, if it's such an all encompassing law?
Because when you are in a country, you are subject to it’s jurisdiction. Can you be arrested for petty crimes? Yes? Then you’re under that country’s jurisdiction.
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Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court - and that's the mission of the Supreme Court, to interpret all the various situations for these cases and how they apply constitutionally.
Here is the full text of the relevant section of the 14th:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Please point to the section where it says "this only applies if the parents are citizens".
The reading which the court affirmed is incredibly obvious. Republicans and xenophobes like to pretend it isn't, but the text is very simple.
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That's not a good characterization. All of he lower courts basically laughed it out of the court room. The fact that the Supreme Court even took the case on is pretty questionable.
The Trump administration found not one judge or panel of judges who agreed with their opinion ... until SCOTUS, where it found three.
Including Clarence, whose "hilarious" dissent says that undocumented persons are not subject to the jurisdiction of the United States, which might be of note to ICE.
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It is totally obvious: every single court told the Trump administration to go f* themselves, and Trump appealed and appealed again until it reached the Supreme Court.
> Don't agree that any of these cases are "most obvious" given that it's gone all the way through various appeals courts to the supreme court
Every single court on the way to SCOTUS correctly said "the fuck?!"
> Federal judges in each of the district courts issued preliminary injunctions to block the order from taking effect anywhere in the country. Judge John C. Coughenour, presiding over Washington v. Trump, called the order "blatantly unconstitutional". Government appeals challenging the injunctions were rejected by the Court of Appeals for the Ninth Circuit, the Court of Appeals for the Fourth Circuit, and the Court of Appeals for the First Circuit.
https://en.wikipedia.org/wiki/Trump_v._Barbara
https://en.wikipedia.org/wiki/Trump_v._CASA#Background
it's on the tin
It's tricky because dissenting doesn't necessarily mean you'd reach the opposite conclusion in every respect.
In this case, I really doubt even the most conservative justices believe "birthright citizenship means whatever an Executive Order says it does." At a minimum, we know they aren't signing on to the reasoning the 5 in the majority used. And then we can learn whatever they feel like saying in the dissent, but a dissent is just an essay with no force of law.
But since we have the dissent opinions, it's not tricky at all to see why they are dissenting.
Alito and Thomas straight up believe that the constitution does not provide birthright citizenship and the executive order is valid. Gorsuch mostly agrees but makes an exception if the parents plan to stay in the US. Kavanaugh agrees that birthright citizenship is not provided by the constitution, instead he argues its a federal statute that congress can overturn (but the president cannot)
https://www.scotusblog.com/2026/06/supreme-court-strikes-dow...
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Per Thomas's dissent:
> The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens.
The crazy thing here is that 4 supposedly conservative Supreme Court justices wanted to overturn over a century of precedent on how the constitution was interpreted.
They took this case so they can appear to be reasonable while doing wild stuff in other cases.
Exactly. Notice the ruling after ruling from the Supreme court strengthening the power of corporations and moneyed interests.
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Our entire history of a nation is the people fighting against the ruling minority of tyrants. Look at how fast SCOTUS struck down the civil rights act of 1875 (only 8 years).
Look at how quickly slavers used the federal government to uphold slavery, the fugitive slave act was one of the first things Congress signed and took zero time enforcing against the will of the people.
Look at how quickly business leaders fought against Americans trying to better their working conditions.
The US constitution was designed to impede societal progress by stripping power from the people. The "reverance" people have for the "founders" doesn't help either, acting like a document written to embolden slavers as sacrosanct is beyond pathetic.
What about the constitution specifically?
You are saying this like there are other of nations that didn’t need to struggle for equal rights, workers’ right etc.
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You can be pro/fine with legal immigration (and moderate/non-partisan) and still not think birthright citizenship is a good idea (like I do).
Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
Reminds me of legal abortion: practically everywhere in the world has it. If you are not in that vast majority you should be taking a very close look at yourself/things.
So yes, let's amend the constitution. It's been a while and we do it on average every ten years or so. I have personally not ever been involved in one.
It's not really a question of what's a good idea. It is in the text of the Constitution, about as plain as it can possibly be. If you want to change it, you have to change the Constitition.
Ironically, the same Court members who most often claim the plain text of the Constitution to support their ideas are the ones who put the most effort into finding a tortured reading of the 14th Amendment.
I thought so too. Then I read the arguments about the passage of the amendment. The people passing clearly stated that, say, the children of ambassadors wouldn't be eligible. It was mainly aimed at clearing up the questions about the various Native Americans who may have considered themselves independent. It wasn't about opening the doors to anyone.
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Please re read his comment. He’s saying the constitution should be amended.
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SCOTUS has not had anything remotely close to a plain text reading since the 1930s and probably longer. "Shall not be infringed" was changed to "if an infantry rifle was made after 1986 then magically it can be infringed" and (until about a week ago when it was overturned) "if you smoke a left-handed cigarette actually the second amendment doesn't exist." The 1st amendment protects freedom of speech but yet it's legal to ban appeals to "prurient interest" even though no such exemption is mentioned. "Interstate commerce" has been changed to mean basically "commerce" and interstate is now interpreted as if it was put there for funsies since everything can be construed as affecting something else in the universe even though the historical context makes clear that's not how the text was interpreted by the writers.
Every other amendment including the 1st, 2nd, etc even when explicitly spelled out the courts magically pull something out of their ass to "torture it." Yet the 14th amendment birthright citizenship, who's "history and tradition" was to right the wrongs of slavery, somehow has to be read absolutely in black and white.
Personally I am amenable to the plain text interpretation of the 14th, 1st, and 2nd, but lets not pretend that is the game SCOTUS or even most of government and society is playing. The constitution is referenced more as a religious document by all the above to mean whatever it is they say it means.
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Note: There are ~30ish countries that provide citizenship to anyone born within their national borders (many with restrictions, for whatever that may mean). Largely, this covers a spotting of countries across the globe, but is almost universally true within the Americas.
As far as I can see it is almost entirely countries in the Americas plus Pakistan that have real birthright citizenship. Everywhere else has some restriction such as stateless parents, or multiple generations born in the country, or a minimum period of residence or similar https://en.wikipedia.org/wiki/Jus_soli
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And how many of those countries have an illegal immigration problem? I bet that most of them would quickly remove that loophole if people actually started to exploit it.
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Imagine being 18 and suddenly discovering you have to prove the citizenship status of a parent you've never met or else you'll be deported to a country you've never been to and who's language you don't speak
There is no problem having mechanisms in place for edge cases where the child has been abandoned, parents both dead and so-on.
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i dont agree with the person you are responding to, but theres a difference between not being a citizen and being deported.
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Imagine a country extending citizenship to a whole group of people for no reason other than the location of their birth, and then allowing said people to access the benefits of citizenship, including the ability to receive welfare benefits, vote, and run for office.
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A belief held by the majority does not make it better simply for that fact. Not that long ago, the majority view was that slavery was a great thing, so I think you should see that argument falls fairly flat.
Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
> Offering birthright citizenship makes the US better than 95% of the other countries. Not worse.
No arguments why its better, just stating it as if its fact.
Most countries do not have it because it creates many preverse incentives (such as anchor babies). This especially in countries which are targets of immigration (such as the US).
> Not that long ago, the majority view was that slavery was a great thing
A bit of a tangent, but is that actually the case? The highest estimate I have seen puts slave ownership at 5% of the population while the lowest puts it at 1%.
Obviously just because somebody doesn't own slaves doesn't mean they didn't support the system. There could be economic or legal reasons they couldn't own a slave.
I am just not sure that it was actually a majority view at any point in time in the US.
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The US has always been a country of immigrants; the Constitution recognizes and enshrines this fact. Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment). Given how difficult it is to find consensus on even the most banal issue, it's unclear whether there would be sufficient support to ever amend.
> Amending this rule requires a federal supermajority (66% in House and Senate) or a state majority (66% of state legislatures vote in favor of said amendment).
This is actually just the first step - to propose an amendment.
To ratify it requires 3/4 of the state legislatures (or state “conventions”) to vote in favor.
https://www.archives.gov/federal-register/constitution
As a non-US citizen, birthright citizenship has always struck me as strangely unique to America - in my mind it comes from a time when it was actively trying to populate the continent (something not a lot of countries have wanted to do, I guess).
Roll forward a few hundred years and the context has changed, so it seems reasonable that the law should too? But I guess it shouldn't be surprising that this is no bueno for SCOTUS, which has an infinite hard-on for Originalism [0] - I certainly can't imagine the conservative justices are ruling based on humanitarian grounds.
[0] https://en.wikipedia.org/wiki/Originalism
Most countries in North and South America have unconditional birthright citizenship for persons born in the country.
I take it you are not British? The British Empire had birthright citizenship, and up until 1948 (except for Ireland) citizens of all Commonwealth countries were simply British subjects.
Afterward it was possible to be, for example, a Canadian citizen, but it was still the case that "Prior to the [the British Nationality Act 1981] coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to [Citizenship of the United Kingdom and Colonies] status" - https://en.wikipedia.org/wiki/British_Nationality_Act_1981
Birthright citizenship is not unique to the United States, it’s common to certain kinds of former colonies.
I mean, it tracks with "no taxation without representation". Getting rid of birthright citizenship has the chance to create a separate *multi-generational* class of people that aren't given the same rights in society.
Most of the Americas for just that reason - and because the countries immigrants came from did not want their kids to have citizen ship and the right to come back.
Given the US is one of the most (the most?) successful countries in recent human history, shouldn't it be the other way around? Shouldn't the 95% be looking at the US and seeing what to copy?
To be fair a lot of it had also to do with the sheer immense amount of vast, mostly unused ,fertile land available in north America. I sincerely doubt the American experiment would have worked this well if they had rowdy neighbours and infighting due to resource constraints. For almost 200 years the solution to most things in the USA was to get a chunk of either their people or immigrant to move to the neck of the woods to find fortune
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Define successful?
(You'll probably want to avoid metrics like happiness indices and life expectancy though)
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We don't really amend the Constitution every ten years. We got 10 all at once, immediately after the Constitution was written. They were amendments only because there was debate about whether including them would deprive people of even more rights by omission.
Of the remaining ones, two cancel each other out, and several others (including the most recent) are trivial. The Constitution has not been meaningfully amended in half a century, and it seems wildly unlikely that it ever can be.
The United States is different from 95% of countries. We're the place you are supposed to flee to when those other countries oppress you. That's just not the history of a place like Italy or Japan.
My great great grandparents left Quebec in search of a place where they could earn enough money to make it. They immigrated to America. They lived in communities of other Quebec emigrants and spoke French their whole lives. They never pursued American citizenship. Without birthright citizenship, would my great grandma have been American? OK then what about my grandpa? What about me? I'm not sure if any of my immigrant ancestors formally pursued American citizenship.
95% of countries weren't formed by settling on somebody else's land and excluding the original inhabitants from citizenship for several hundred years. The American project is what it is because of millions of migrants who settled there for the perverse incentives of free land via the Homestead Act.
Constitutional amendments are generally made with the purpose of granting rights to the people, not taking them away. The US once made the mistake of making an amendment to take away rights (banning alcohol), but then another amendment restored the right to get drunk.
Birthright citizenship is one of the best things we have going for us. I see no reason why we should treat people differently depending on whether or not they have an imaginary stamp labeling them as special (IE, as citizens). Birthright citizenship ensures the problem of unequal representation is fixed over time. A self-fixing function, if you will.
I think what you mean to say is that as a result of this ruling the voice of Americans can be diluted over time so that your preferred political outcomes can happen. Not everyone in my country believes that the concept of the nation state is stupid and should be done away with. I understand that there are many who do think this, and I have to live amicably among them, but it doesn't mean that I need to pretend that your ideas are good for me and my kin.
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> Also ~95% of countries don't have unconditional birthright citizenship. It creates perverse incentives.
I typically find that the people using this logic don't seem to apply it to laws like universal healthcare, parental leave, or paid-time off. The lack of those benefits creates perverse incentives to already living citizens, not hypothetical future citizens. Why not focus on them?
> Also ~95% of countries don't have unconditional birthright citizenship.
Closer to 82% actually, depending on how you count countries. Almost every country in the Western hemisphere has it. https://en.wikipedia.org/wiki/Jus_soli
>It creates perverse incentives.
It also helped vault America into being the wealthiest country in the world.
> Also ~95% of countries don't have unconditional birthright citizenship
The map of which countries have jus soli is pretty interesting: https://en.wikipedia.org/wiki/Jus_soli
>Jus soli is the predominant rule in the Americas; explanations for this geographical phenomenon include the establishment of lenient laws by past European colonial powers to entice immigrants from the Old World and displace native populations in the New World, along with the emergence of successful wars of independence movements that widened the definition and granting of citizenship, as a prerequisite to the abolishment of slavery since the 19th century.[5]
>There are 35 countries that provide citizenship unconditionally to anyone born within their national borders.
>
> It creates perverse incentives
Perhaps advantageous, America has been the product of these incentives and still sits atop the world on most hegemon metrics. It amazes me how many people complain about the post-WW2 world order America built and benefits from more than any other country.
The US is unlike most other countries in that it is built on the recent genocide of the native population, with ~most of the current population being immigrants in the last 400 years.
Under what moral rules do genocidaires get citizenship but not, say, refugees?
Do you have US citizenship? How did you acquire it?
If you inherited it from your parents, how did they acquire it?
Usually strong opponents to birthright citizenship are just a few generations removed from someone who got theirs via birthright.
I, for one, believe in American exceptionalism. This country is different in many ways and its success is due to that difference. I don't think that the US should actively aim to "revert to the mean".
Why do you think it's not a good idea?
> Also ~95% of countries don't have unconditional birthright citizenship.
most of the countries in the Americas do
> let's amend the constitution
go ahead and give it a try. I'd start with getting rid of the 2nd Amendment, then we can talk about the 14th.
Why should I give a shit what 95% of other countries do? 99% of other countries are worse in every way that matters
There's about 193 countries in the world, your number would mean there's less than two countries that are better in every way that matters.
I can name ten countries off the top of my head that are better in every way that matters to me.
The USA ranks near the bottom of developed countries in every metric but the metrics related to money.
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This has nothing to do with whether it is a good idea. The question is whether the 14th amendment plainly says that this is the law of the land in the US, which it plainly does.
That three Justices chose to attempt to gaslight us about this is a disgrace. I'll never trust their judgement again.
Its a terrible idea to give citizenship to the chidlren of birth tourist. It makes no sense that someone defrauds the US government to get their child citizenship then you do nothing about it.
Is it "defrauding" if someone's just following the rules, though? And, at that, is it worth building your citizenship rules around something incredibly rare? (Estimates seem to think it's something like 15k babies a year.)
Looking at the dissents (Justice Gorsuch) it appears that he would consider illegal immigrants’ kids are citizens, but kids of legal non-immigrants are not based on the fact that one is a temporary visitor and another is not!
So, when I enter as a tourist, I'm not in jurisdiction? Sweet! Crime time!
Genuine question.
Isn't this statement aimed at citizenship tourism or whatever its called?
I used to live in a state where some new friends had told us about places that facilitated pregnant women's trips to the US solely for the purpose of staying and giving birth in the US so the child could become citizens. They then head home. I have no idea how prevalent this is.
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Opinion:
https://news.ycombinator.com/item?id=42776131 - January 2025 (34 comments)
This "broad conception" is pretty well documented as what Congress wanted at the time of passage of 14th Amendment. It's been considered "settled law" for ages. The only real reason it's come to SCOTUS is that a particular political faction wants it to, and the media gives that particular faction more credence, and more coverage. So there's two things here:
1. An artificially whipped-up "question".
2. Conservative bias in the media.
> Conservative bias in the media.
Depending on how you count, something like 96%, 94%, 65% or 87% of mainstream media employees lean left. Of course this matters less and less as customers tune out and their influence wanes.
https://ballotpedia.org/Fact_check/Do_97_percent_of_journali...
Now do the management/ownership side.
Thank you! Do they make the decisions about what stories to work and to run?
Yes, educated people tend to lean left, since the right is so anti-intellectual. But virtually all media in this country (both social and legacy) belongs to the far right pedophile oligarchs currently running this country to the ground to fatten their pockets.
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The media in the US generally leans left (with a few notable exceptions).
This is a cherished American belief, but I don't think it's true after 2016, when NYT gave Trump a significant boost with their coverage of Clinton's emails, and continues to sanewash Trump, after 2024, when billionaires like Soon-Shiong and Bezoa personally directed their paper's editorial stance towards Harris, after Aksel Springer unveils a corporate conservative bias policy.
I think it's blatant now, but evidence suggests that "liberal bias" was never more than a partisan accusation.
35 countries in the world, most in the Americas, confer unconditional birthright citizenship (jus soli), regardless of their parents' nationality or immigration status.
Thank God.
If only because this would open up people born here to having their citizenship retroactively revoked.
The constitution is pretty clear. If you don't like it amend it.
If anything we need to expand it to include anyone who gives birth in this country. If you're willing to deal with our horrible maternity care system and help keep up our declining population, you deserve a blue passport.
The U.S. Constitution is very far from being clear. The whole purpose of the Supreme Court is to explain the meaning of what is written in the Constitution; there are 9 justices in the court and they often disagree on that.
Just look at the second amendment:
The "well regulated militia" phrase caused at least two very different opinions: United States v. Miller [1] in 1939 and District of Columbia v. Heller [2] in 2008, with very different results.
Just as the second amendment has this "militia" phrase that provokes arguments, the fourteenth amendment starts with
and the phrase "and subject to the jurisdiction thereof" is vague enough to trigger discussions about whether it applies to illegal immigrants or not.
Natural language is just bad in expressing rules.
[1]: https://en.wikipedia.org/wiki/United_States_v._Miller#Decisi...
[2]: https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller...
The jurisdiction clause is there because of diplomats. It's a common thing in other Jus Solis countries, for good reason.
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No it really isn’t. Immigrants are clearly subject to the jurisdiction of the United States. As Wong Kim stated the only way not to be is if the government has given you permission to be here without being under jurisdiction like a diplomat or if you’re part of an invading force. Every other person in the us is expected to follow us laws. Just because they don’t doesn’t mean the us doesn’t have jurisdiction.
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There was no such thing as an illegal immigrant in the US when the 14th Amendment was ratified.
This is why American Samoans aren't citizens. They aren't subject to the full jurisdiction of the USA even though they are born in the United States.
Yet you rarely find anyone giving a shit about the American Samoans, you never hear about it.
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>American Samoans aren't citizens because American Samoa is a territory, not a state. Puerto Rico has a special status that was extended to it to grant its residents citizenship – this isn't a status that's automatically granted to all territories, it requires Federal approval which AS has never formally pushed for.
Unless you falsely believe PR or AS are not part of the United States, you are just agreeing with me with extra words regarding the jurisdictional differences. The only option for denying birthright citizenship would be not born in United States, or not subject to jurisdiction thereof.
See this excellent prior comment[] on why the difference between PR and AS is jurisdiction and not whether it is part of the US.
>This seems entirely subjective.
I'm not going to do a formal academic study with you, it's plainly obvious as of late you see far more headlines on hackernews (a search shows a single HN topic on AS citizenship in the history of HN, but full page+ of search results on the birthright citizenship issue at hand) and elsewhere regarding the birthright citizenship issue at hand and far more rarely the fact American Samoans don't get it.
[] https://news.ycombinator.com/item?id=16700413
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I can believe that there is a lot of variance in maternal care and obstetrics in the US, but my wife and I had a pretty good experience. Documented here in what detail I could muster in those days: https://wiki.roshangeorge.dev/w/Pregnancy
Congrats!
But statistically America lags behind most other nations of similar development levels.
https://en.wikipedia.org/wiki/List_of_countries_by_maternal_...
Not to mention the lack of maternity leave or real worker protections. A family member was fired for taking off time during a pregnancy. Everyone's fine now, but she definitely had a rough patch.
A big part of this comes down to the lack of any real safety net here.
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> our declining population
Our what?
The US's population is not declining. However, without immigration, our population growth would be very close to zero, and a yet lower rate of natural increase is locked in over the next couple of decades (more old people who will die than children).
And, I mean, it's obviously hard to predict beyond that, but it doesn't seem like anyone has any real clear answer to the trend of steadily decreasing TFR right now.
I suspect OP mean declining fertility rate. USA population is still increasing, but is slowing down, and will sharply drop if the fertility rate remains below replacement of ~2 children per woman.
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The US Is Flirting With Its First-Ever Population Decline - https://ourworldindata.org/population-simulation-tool
("demography is destiny")
The birth rate correlates inversely with female earnings growth and correspondingly with male earnings growth; or, more to the point, declining birth rates correlates with the advancement of feminism (including birth rates approaching and then reaching zero.)
This is an observation and not a judgement. Take what you will with this information.
Yes, because of the outdated assumption that women take virtually all responsibility for childcare, which is damaging not just to women, but to men and children too, combined with the it becoming more difficult for families to manage on a single income.
It is not just an American problem. It is slowly changing, at least here in the UK: I see a lot more dads taking kids around these days. I have still found people were surprised that my daughter lived with me rather than her mother after divorce though.
It makes sense to me. When women have more choices, they tend to put off having kids or they raise their standards - for their economic situation before kids, for partners, etc.
I think this is good; insofar as women have children, it should be because they want to, not because they're pushed into it.
I'll say - it also wouldn't kill us to have slightly fewer people on the planet. We're already taxing much of our systems/ecosystems past their breaking points. Smarter people than me, entire groups of scientists, are saying that what we're doing now is badly unsustainable and we're heading for trouble.
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This is true, although I think it correlates more strongly with female participation in the workforce than earnings directly. And it's not a criticism of feminism, just a consequence that we should be aware of.
A material component of reduction in the US fertility rate has been avoided teen (15-19 cohort) pregnancies. ~40% of pregnancies both in the US and internationally, annually, are unintended (per the Guttmacher Institute and the UN, respectively).
Teen birth rates hit another historical low in 2025, CDC says - https://www.npr.org/2026/04/09/nx-s1-5777587/teen-birth-rate... - April 9th, 2026
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> This is an observation and not a judgement. Take what you will with this information.
Why bring it up at all if you're not trying to say anything?
Birth rate correlates with home ownership rate for people aged 25-34. Wonder why that's been going down despite household earnings growth.
It also correlates with the economy being more and more hostile towards single income households, but let's just blame women knowing their own worth.
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That exception comes from the fact that, I'm guessing, no diplomat or their children have sued over it.
If they have, I'd love to see exactly where a prior SC decided that it's constitutional.
If you are an originalist, textualist, or even just standard jurisprudence believer then it's crystal clear what the 14th meant. The only reason for any question about it is because a large portion of people hate the fact that someone can get citizenship by being born here.
The dissents violate the supposed judicial theory of these justices. It shows naked partisanship.
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I mean, aren't diplomats immune to US laws? Literal "diplomatic immunity".
It makes sense to me to say that they do not fall under US laws and US jurisdiction, and their children likewise.
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> If only because this would open up people born here to having their citizenship retroactively revoked.
No, that's not how laws work
Applying laws retroactively is much less common than a "simple" rule change
This wouldn't really be applying laws retroactively, but deciding what the law has always meant. If the decided meaning is that children of illegal immigrants are not automatically citizens, that means they weren't automatically citizens beforehand. Thus there wouldn't really be anything to revoke, they just never were citizens in the first place.
The executive order that prompted this was only aimed at babies born after it went into effect, but I see no reason it would have to be that way.
Either laws work the way they're written and 4 members of the court disagree or they work the way the Supreme Court says they work and a worse ruling could threaten those citizens.
That was very much on the table, though not locked in.
That's not how we have traditionally thought citizenship works, but that is exactly what the Trump administration would've gone for next if the supreme court had ruled in their favor in this instance, thereby setting up the _next_ supreme court case.
> If anything we need to expand it to include anyone who gives birth in this country.
???
That's exactly what this ruling affirms; no expansion necessary: it already included "anyone who gives birth in this country".
They are arguing that the mothers should also get citizenship, in addition to the babies. That's definitely not what was affirmed.
Sorry but I wanted to see a 9-0... There are 3, 4, that are just ignoring the constitution from what I read/saw. It is only a matter of time. A win for now but that is for now.
What is “a matter of time” exactly? I doubt the court wants to revisit this again any time soon. And two of the dissenters are probably the likeliest justices to be replaced next.
it's on the tin of the 14th amendment
deal with it
Trump and his cronies were never going to win that battle. Like many things he does, it serves as a dog whistle to nationalists and allows him to paint anyone who opposes him as somehow un-American and an enemy of the ‘people’.
> Trump and his cronies were never going to win that battle.
He got dang close. He's only one justice replacement away from making it doable.
Gods, we are not as far from ripping up the Constitution as we'd like to think.
White nationalists, specifically, yeah. Colloquially known as Nazi wannabes.
Another bad decision that won't stand the test of time. The decision says more about the justices themselves than it does the decision. Voting the "right way" gets positive press attention, invites to the DC social circle, etc. Kavanaugh and Barrett are both attention seeking, weak willed individuals that Roberts plays like puppets. Personally, Trump should not have nominated either of them. And W's nomination and selection of Roberts over Scalia was appalling. Neither a textualist or an originalist could have ruled that way. And using the 14th Amendment as justification is historically disingenuous, as Clarence Thomas pointed out. Birth tourism will thrive.
I'm sorry, you are saying that using the highest law of the land to settle a legal question it directly addresses is historically disingenuous?
No, I'm saying the use of the 14th amendment to justify the majority opinion is disingenuous, as Thomas points out.
This particular Supreme Court is out of control. The Roberts court will (IMHO) go down in history in the same cateogry as the Taney court that gave us such decisions as Dred Scott. Supreme Court justices have always been political actors, not some high-minded academics that come down from their ivory tower to hand down missives every now and again (as some imagine). But this is a step beyond anything we've seen in a long time. Here are some highlights:
- 4 justices in this decision rejected the plain text reading of the Citizenship clause of the 14th Amendment, which would've overturned over a century of precedent;
- They invented the "Major Questions Doctrine" that basically allows the Supreme Court to overrule the will of the executive and legislative branches if they deem the decision sufficiently weighty. It was invented and used to block significant legislation under the Biden administration;
- They invented the History and Traditions Test under the Biden administration to overturn Roe v. Wade with the Dobbs decision. This was in spite of abortion being not only legal but essentially unregulated at the founding. Famously, Ben Franklin published an at-home recipe for abortion [1];
- They have lied about the facts of cases to push a particular decision. One of the more notable cases was Kennedy v. Bremerton School District that allowed school prayer. The lie? That the coach was "quietly" praying. This was not true and was documented, including photos to the contrary;
- There are now essentially zero limits on campaign spending by anyone after today's decisions on PAC and campaign coordination and of course Citizens United;
- They decided that independent agencies set up by Congress are unconstitutional despite almost a century of precedent because of the separation of powers but this doesn't apply to the Federal Reserve for some reason;
- They overturneed 40 years of precedent of Chevron deference, a case that Gorsuch should've recused himself from since he was essentially avenging his mother's sacking as EPA administrator under Reagan in a case that became Chevron. 40 years of Congress and 7 presidents of both parties have written and signed laws with Chevron deference in mind;
- They invented presidential immunity out of whole cloth in a country that was founded rejecting monarchs who were above the law. All the insider trading and pardon selling of the current administration is a direct and foreseeable result of that decision;
- They decided that Federal regulations could essentially be challenged at any time instead of the previous six-year rule (ie Corner Post). This essentially allows you to challenge a 100 year old rule by setting up a situation where you're "harmed";
- Roberts has almost singlehandedly gutted the Voting Rights Act over several decisions. Previously he got rid of federal preclearance because of a history states had with discrimination and voter suppression. They immediately went back to discrimination and voter suppression. And then this year the court basically allowed racially-discriminated redistricting under the guise that it was "partisan" not "racist" unless you can prove beyond a shadow of a doubt that it's racist;
The inability of this court to see obvious racism harkens back to a famous decision called Cruikshank that decided private individuals couldn't be punished for civil rights violations (notably, hate crimes) in a response to the Colfax massacre. Additionally, Cruikshank stated that the Bill of Rights didn't apply to state governments. This was slowly dismantled by various opinions over the next century.
There were other cases of the Redeemer era (notably Plessy v. Ferguson that legalized segregation) where the court was completely unable to see racism and went out of its way to limit any effort to combat it. We're in one of those eras now (IMHO).
All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
[1]: https://www.npr.org/2022/05/18/1099542962/abortion-ben-frank...
> All of this is incremental too. So today two cases were decided that essentially allowed states to ban trans athletes. The next step here is that trans athlets must be banned. Those cases are already percolating through lower courts and we'll see them in the next term most likely.
Actually what today's decision does is uphold Title IX rights for women and girls. Have you considered how this decision benefits female athletes?
Hard to address everything wrong you wrote, but in particular major questions doctrine protects us from presidential overreach. It has been key in stopping some of Trump’s foolish policies like tariffs. So that is hardly something we should be criticizing. Biden’s student loan forgiveness was similarly illegal executive overreach. These sorts of major things should be passed by congress.
Yes and no. The tariffs decision was fractured. There were really two prats. The first was that a statutory interpretation of IEEPA didn't give the President the power to tax. That authority lies with Congress. The MQD, to me at least, felt shoe-horned in tehre, kind of to justify its existence. But a statutory interpretation was sufficient to rebuke the President's authority so why the rest? It feels like the court is saying "see? we use this on Trump too. We're not biased".
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5-4 though, yikes! This shouldn't have even been close. With an impassioned 91 page dissent by Thomas. What a chode.
6-3 with Thomas, Alito & Gorsuch dissenting
This is kind of crazy. The text of the amendment is as literal as it gets. If this had failed it would have basically meant emptying Congress of all of its powers, because now the executive can just pick whatever interpretation they deem fit to their goals and run with it.
The rule of courts of law is to interpret the law, not to pick new creative meanings out of them. That's the role of the legislative power - otherwise what's stopping a court to reinterpret the meaning of any word in any legal text and allow the executive to rule by decree
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5-4 on the Constitution. Kavanaugh's concurrence is that birthright citizenship is controlled by a law that Congress could change.
Kavanaugh ruled that Trump's EO wasn't unconstitutional, just contrary to federal law, and Congress could change the law there if they wanted. So, this makes it only 5-4 upholding the 14th amendment.
Which is gods-damned crazy. We are that close to overturning major civil rights.
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Kavanaugh agrees with their reading of the 14th Amendment, though.
I should be unanimous, it's what the constitution says. If you don't like it you need to go through the amendment process.
>I should be unanimous, it's what the constitution says
Thats a tautology. “What the constitution says” is the thing in question.
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> All persons born or naturalized in the United States, and subject to the jurisdiction thereof ...
It's the second part that is in dispute and is not clear from the constitution's text what exactly it means and who it excludes. And yes, it has always excluded some people born within the borders, it is not a meaningless statement.
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In the past decade, the Constitution hasn’t slowed down the courts from creatively interpreting its various clauses. Their decisions have effectively amended many of those fundamental (and arguably inalienable) rights. Repeatedly.
This trivial reading of the constitution doesn't align with the reality. Two simple exceptions and a third not so simple are children of diplomats, children of invading armies, and native americans, who required an act of congress to give citizenship at birth.
The supreme Court ruled that South Carolina could not secede from the Union because the Constitution was merely a continuation of the agreements under the articles of confederation even though all states had to withdraw from the confederation to get into the union.
After that bit of logic, nothing the supreme Court decides would surprise me
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Idk if it's a "truly insane policy", but these are the rules of the game, and there is a procedure in place for changing the rules of the game.
Maybe so, but it isn't any of the Supreme Court's business. The 14th amendment is very clear. And yep, if you don't like that amendment, you're free to advocate for a new amendment that says something different.
Why do people act like the sky is suddenly falling when the Court just keeps things as they have been for two and a half centuries?
Maybe not that long, but at least as long as 90 years. Thomas cites examples of people being denied citizenship by the executive branch, but in almost all cases they did not sue and just accepted the denial.
one and a half, but sure
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It wasn't up to the Supreme Court to correct. It is very plainly written in the constitution. Sure you can disagree, but it is up to elected representatives in Congress to amend, not Trump or the Supreme Court.
It's not a "policy" it's a constitutional right.
We can collect income tax from children of tourists who happen to be born in the US on vacation? Great!
Why is it insane?
Some woman who is 8 months pregnant comes to the US on a tourist visa and gives birth, then goes home with the baby. And then somehow that kid gets automatic US citizenship. And it applies even if the mother is not even legally allowed in the country. And you think that is not insane?
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I'm not him, but it creates some perverse incentives (like chinese billionaires who pay american surrogates to get implanted with dozens of their kids who get american citizenship).
https://fortune.com/article/chinese-billionaire-xu-bo-father... might be an outlier, but it's still weird, especially since the US is the only country that has this.
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Truly insane that this is one of the most important founding aspects of the country. Without which most, if not all, the population wouldn't legally be allowed to live here. But yet, you don't understand that.
Most Americans conveniently forget the whole "nation of immigrants" thing once they are a few generations removed from the situation. Ladder kickers the lot of them.
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I’m curious why you believe an amendment will help your situation.
This case (placed alongside many others in recent memory) demonstrates that no matter how clear and unequivocal a legal text you write, the textualists can find a way to overturn it.
So what specific legal text for this amendment of yours do you believe is immune from that degree of sophistry?
Yep. Could not be more disappointed in Gorsuch here. What is the point of writing things down in the Constitution if Justices are just going to vote for their preferred ideology and come up with embarrassingly thin justifications for whatever they think the document should say?
The number of times this happens in a year is negligible. It’s also quite difficult to do it safely: airlines won’t allow you to fly when heavily pregnant, and emergency deliveries are incredibly expensive due to the American healthcare system.
So you are suggesting abrogating rights based on an event that occurs with minuscule probability. Get a grip.
Agreed, especially when the “vacation” is actually birth tourism and the mother lied at the border.
How many folks "on the right" would be willing to use similar logic to nullify amendments they tend to like?
E.G.: "US guns are stolen and exported to foreign gangs. Therefore, the text of the 2nd Amendment is entirely null and void and should be 'corrected' by the Supreme Court"
It is not be the job of the Supreme Court to "correct" Constitutional amendments!
the fact that birth tourism is a thing means the demand for us citizenship is way higher than supply, to the point people are willing to put their whole life savings and break the law just to have a shot at getting it through a complicated family route.
its easy to fix by making legal immigration cheap and reliable. its also great for the economy, a lot of undocumented immigrants work illegally dont pay taxes because they cant work normal jobs without getting deported.
legalizing their stay means more tax revenue, less crime and labor violations, lower costs for business and i would also say its kind of morally wrong for a rich country to buy cheap stuff made by workers in mexico or china and give none of the profits back. closed borders are glboal injustice.
If you would like a carve out for this, that may well be reasonable policy, and you should feel free to advocate for an amendment to the current text.
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Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Also, IMHO, The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States ... and at the time of the 14th amendment it's not really clear if United States is meant as a singular noun or a collective noun... given that people born in the territories are not automatic citizens, I think the interpretation is that you have to be subject to the jursidiction of any one of the States, which an Indian born on a reservation certainly wasn't.
> Your deleted post elsewhere mentioned the text of the 1866 civil rights act stating not subject to a foreign power, but the amendment uses this text instead. IMHO, that shows awareness of the issue and a different choice.
Couldn't it go either way? The 1866 civil rights act says: "all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed."
The 14th amendment says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
I agree that Congress could have intended the different language to have different meaning. But it seems plausible to me that Congress intended the 14th amendment to have the same scope as the law it had drafted just two years earlier, but just used slightly different language.
> The Indian Citizenship act addresses the complex soverignity of native tribes. Members of recognized tribes, on reservations have broad exclusion from laws of the State and in many cases are also excluded from jurisdiction of Federal law. This complexity has changed over time, but in 1924 it certainly wasn't clear that Indians were subject to the jursisdiction of the United States
Members of tribes on tribal land have been subject to federal law since 1817, though crimes committed by tribe members against other tribe members on tribal land were within the jurisdiction of the tribes. So you had and have a system of concurrent federal and tribal jurisdiction.
But the same complexity applies to foreign nationals too. Countries have jurisdiction over the conduct of their citizens even as to overseas conduct. For example, the U.S. government exercises jurisdiction over Americans who engage in child sex tourism by American nationals in Thailand.
I don’t find it compelling to read “subject to the jurisdiction” to mean “being subject to U.S. laws.” That proves too much and doesn’t justify the acknowledge exceptions. I think there’s a good reason Roberts focused heavily on the common law to buttress up the text.
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Here's the full text of the relevant section:
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The dissents are worthless, like most of the opinions from Thomas and the other conservative "justices". None of this wording is tricky unless you are specifically trying to find ways to deny rights to american citizens based on their ethnic origin.
> whether the child is “subject to the jurisdiction” of the U.S. at birth
If I strangle said child in the maternity ward, do you think the US will go "whoops, no jurisdiction!"
that would be jurisdiction on you committing murder, which they do have.
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I don't think the language is ambiguous at all, and I consider it shocking and beneath the dignity of the Court that this was not a unanimous decision (and that the case was taken at all).
What does “subject to the jurisdiction” mean? How can one be in the US and not subject to the jurisdiction?
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I agree that it's worth reading the original source and encourage all to do so. My takeaway however was that the majority had a much stronger body of evidence than the dissenters.
> Meanwhile, English common law points one way, while some legislative history, the 1866 civil rights act, and the 1924 indian citizenship act point the other way.
This is a summary of Thomas’ dissent; the majority opinion is based on more than just “English common law.” Even Thomas acknowledged this.
It was not tricky. The arguments against are fundamentally dishonest and so is your representation otherwise.
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> one of the few in the world that allows this
1 out of every 5 countries, 28% of the world's land area isn't "few" in my book.
Then you can the work to get Congress to ratify an amendment. Donate, campaign, maybe even run for office yourself! We still do things democratically, not by executive order. Authoritarians will always offer the easy way out.
Both sides of each case should really start doing this after any ruling. As we've seen dozens and dozens of times, there is nothing that says the Supreme Court will have the same interpretation of the same less-than-crystal-clear words 10 years from now. Their decisions in the meantime are also not really democratic yet trend consistently towards their (albeit, very well argued versions of) individual political views instead. It's a problem of the current court as much as it was a problem of the court 20, 40, or 60 years ago.
> one of the few in the world that allows this
Over 30 countries have unconditional birthright citizenship.
It's not that rare. Nearly every country in the Western Hemisphere does it this way.
We want the best talent to want to come here!
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> The problem with this is that many people come here to only have children (anchor children) and abuse the system.
Racist lie, provide proof that this is an actual significant issue.
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While maybe a small scale issue, the solution isn’t an authoritative order that tries to rewrite the U.S. Constitution and bypass democracy.
Perhaps, but this is definitely an issue/problem and the US should model it's policy after the EU on this specific issue.
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This is neither science/tech nor VC related, why are we becoming the dumping ground for political news?
Half the people in Silicon Valley are immigrants - or more. Likely very relevant.